Thoughts on Life, Love, Politics, Hypocrisy and Coming Out in Mid-Life

Wednesday, April 18, 2018

Gorsuch Joins Liberal Justices to Strike Down Deportation Law

Gorsuch with Justice Kagan who wrote the majority opinion.

In a move that will prompt shrieking among the racist and misogynist GOP base and possible rants in the West Wing, Justice Neil Gorsuch - hardly my favorite justice - joined with the Supreme Court liberals and voted to strike down an arbitrary and vague anti-immigrant law. The ruling was the second time that an overly vague anti-immigrant law has been struck down by the Supreme Court. As worded, the law that was in theory aimed at immigrants who commit violent crimes was being abused by Homeland Security and used to target immigrants committing non-violent crimes. The New York Times looks at the welcomed ruling:

The Supreme Court on Tuesday struck down
a law that allowed the government to deport some immigrants who commit
serious crimes, saying it was unconstitutionally vague. The decision will limit
the Trump administration’s efforts to deport people convicted of some kinds of
crimes.

The vote was 5 to 4, with
Justice Neil M. Gorsuch joining the court’s four more liberal members to form a
bare majority, which was a first. Justice Gorsuch wrote that the law crossed a
constitutional line.

“Vague laws,” he wrote in a
concurring opinion, “invite arbitrary power.”

His vote in Tuesday’s case was not entirely surprising, though, as he
has a skepticism of vague laws that do not give people affected by them
adequate notice of what they prohibit.

Immigration
advocates said the ruling could spare thousands of people from deportation.“This decision is of
enormous consequence, striking down a flawed law that applies in a vast range
of criminal and immigration cases and which has resulted in many thousands of
immigrants being deported for decades in violation of their due process
rights,” said E. Joshua Rosenkranz, a lawyer for the immigrant at the center of
the case.

The case, Sessions v. Dimaya, No. 15-1498, was first
argued in January 2017 before an eight-member court left short-handed by
the death of Justice Antonin Scalia. The justices deadlocked 4 to 4, and the
case was re-argued in October after Justice Gorsuch joined the court.

The case concerned James
Dimaya, a native of the Philippines who became a lawful permanent resident in
1992, when he was 13. In 2007 and 2009, he was convicted of residential
burglary.

The government sought to
deport him on the theory that he had committed an “aggravated felony,” which
the immigration law defined to include any offense “that, by its nature,
involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.”

In 2015, in Johnson v.
United States, the Supreme Court ruled that a similar criminal law was
unconstitutionally vague. Justice Elena Kagan, writing for the majority in
Tuesday’s case, said the reasoning in the Johnson case also doomed the
challenged provision of the immigration law.

She quoted at length from
Justice Scalia’s majority opinion in Johnson, which said courts could not tell
which crimes Congress had meant to punish.

She added that lower courts had been unable to apply the immigration
law consistently.“Does car burglary qualify
as a violent felony?” she asked. “Some courts say yes, another says no. What of
statutory rape? Once again, the circuits part ways. How about evading arrest?
The decisions point in different directions. Residential trespass? The same is
true.”

Justices Ruth Bader
Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined all of Justice Kagan’s
opinion, and Justice Gorsuch most of it.

Near the end of her opinion, Justice Kagan again quoted Justice
Scalia. “Insanity,” he wrote in a 2011 dissent,
“is doing the same thing over and over again, but expecting different results.”

Justice Kagan said it was
time to heed that advice. “We abandoned that lunatic practice in Johnson,” she
wrote, “and see no reason to start it again.”

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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